Although there are many difficult substantive issues, veterans law is much more about procedure. Much of this procedure may look foreign at first, but it is still a system about gathering and adjudicating evidence. Elsewhere I have tried to explain the system in a way that makes sense to those familiar with the typical American trial system. Here I will try to briefly summarize a process that is not brief at all.
The first step in the process is for a veteran to file a claim, but no formal application is required. What happens in practice is that a veteran’s first application is usually formal, but in the time that it takes to process that application, much additional correspondence will be submitted. Often, that correspondence will mention additional health problems, which raises the difficult question of whether there is any intent to apply for additional benefits.
After a claim has been recognized, VA first has a duty to send the claimant a letter explaining the information and evidence necessary to substantiate the claim. In practice, this is not always straightforward because there are so many different possible ways to prove various types of claims, which makes it hard to present this information in a way that is easy to understand. These notice letters can run many pages, and veterans service organizations (VSOs) regularly complain that veterans give up without understanding them because they are too difficult to understand.
VA also has a duty to obtain all relevant records, and it automatically seeks service medical records. However, the records of millions of veterans were destroyed or damaged in 1973 in a fire at the National Personnel Records Center (NPRC). Aside from those losses, other lost, incomplete, or destroyed records can sometimes be an issue. Guard and Reserve veterans who were activated for duty in Iraq or Afghanistan have a notoriously difficult time with this issue and their records are frequently scattered and incomplete. Even when a service member’s individual records are complete, there is often a need for unit records or other documents from the military that must be requested separately.
VA must also seek to obtain any other relevant records of which it is aware. This often includes records from the Social Security Administration and private medical records. If the first attempt is not successful, VA must make additional attempts. Because veterans claims often involve decades of relevant medical history, it can be difficult to determine where relevant records are currently located or even whether they still exist. Problems often occur when it is not clear whether VA has enough information to identify relevant records, when a response is unclear as to whether any or additional records exist, or when VA fails to notify a claimant that it was unable to obtain records that it sought.
VA’s third major duty is to provide a medical examination and obtain an expert medical opinion when one is necessary to decide the claim. This is required when the record “indicates” that the veteran has a condition that may be related to service. The U.S. Court of Appeals for Veterans Claims (CAVC) has made clear that this is a low threshold, and VA obtains well over a million expert medical opinions a year. The great difficulty for VA is obtaining medical opinions that are adequate to decide the claim. Veterans claims often have records that run into the thousands of pages, and there are so many potential paths to entitlement that it is very difficult even for a trained expert to catch and thoroughly address every potential theory of entitlement suggested by the record. As I have argued elsewhere, the fundamental problem of the system is that doctors and adjudicators never have the opportunity to directly interact with each other so that difficult questions can be properly explored. As a result, failing to obtain medical opinions and relying on inadequate medical opinions are two of the dominant reasons that claims are remanded for readjudication.
Once the claim is developed, it is initially decided at one of VA’s 56 regional offices (ROs) around the country. About half of the adjudicators applying the complex legal system to the mountains of medical evidence are veterans themselves and are intimately familiar with the fact patterns involved in the claims that they are processing. Nonetheless, as one union representative commented, they are “not brain surgeons with law degrees.” Many have only a high school education.
If a claim were denied, then it could be appealed to the Board of Veterans’ Appeals (BVA) in Washington, DC. The appeal process is started by the veteran filing a Notice of Disagreement (NOD) within a year of the initial decision. There is no official form for appealing (although one has recently been tested). Any informal statement in written correspondence may be considered an NOD. What frequently occurs is that a veteran will have several claims progressing at different stages. He or she will send in correspondence that mentions some of them (and may mention new conditions), and the RO will have to decipher whether any of the statements constitute an NOD. For example, a veteran’s statement in a letter that he “wonder[ed] why [his claim] wasn’t allowed back in 1985” was found by the CAVC to be an NOD as to the effective date of grant of benefits.
Once an NOD is filed, the RO prepares a Statement of the Case (SOC) that reexplains the decision in more detail, and the veteran must then file a Substantive Appeal to complete the process. The Substantive Appeal is often called a Form 9, after the standard form that may (but need not) be used. Theoretically, this is where claimants are supposed to state why they think that the RO decision is wrong. However, in practice, this is not actually required, because VA allows veterans to simply check a box on the Form 9 indicating that they wish to proceed. This two-step process is a relic of the 1950s when RO decisions were not required to have an explanation at all. RO decisions were required to include explanations shortly after the VJRA was passed, but the NOD/SOC/Form 9 process remains.
The BVA is the last stop within VA. The BVA consists of 64 very busy members, also called veterans law judges, who each decide an average of 800 cases a year. For most cases, the BVA is the first place where an attorney will look at the claim. The BVA conducts de novo review. There are two crucial aspects to understand about BVA review. First, the BVA is required to address not only all issues that the appellant raises, but also all issues reasonably raised by the record. Second, the BVA is required to provide adequate “reasons or bases” for each of its decisions. In practice, these are very demanding requirements. The BVA must write a decision that affirmatively proves to the CAVC that it searched the entire record, found every relevant piece of evidence, and considered every potential theory of entitlement. The net result is that the CAVC typically remands 75 to 80% of BVA decisions it reviews, primarily for not addressing every relevant piece of evidence or fully explaining how every potential theory of entitlement was considered.
For proper context, one must understand that claimants almost always navigate the entire agency process without the assistance of an attorney. As I mentioned in an earlier post, the Civil War era $10 limit on fees drove attorneys out of the system by WWI, and the veterans service organization (VSOs) filled the void. Most claimants accept free assistance from a non-attorney representative though one of the several dozen VSOs chartered by Congress. It is still illegal to charge a fee prior to the filing of an NOD in a claim, and attorneys have been able to charge for assistance in BVA appeals for only a few years. Accordingly, attorneys very rarely assist at the RO level and are involved in less than 10% of the appeals at the BVA level.
As discussed earlier, BVA decisions are appealed from VA to the CAVC, which is an independent Article I court. The CAVC conducts traditional appellate review. However, it is unique in that most decisions are issued by single judges rather than panels. This is largely due to the fact that most appeals are initiated pro se and do not raise new issues of law. Accordingly, to handle the high volume of cases, the CAVC reserves its panel process for those cases in which it intends to issue precedential opinions. The CAVC is also unique in that no member of the BVA has ever been appointed to it since its creation. Although most appellate courts have at least a few members with direct experience in the system below, the CAVC has traditionally been filled with veterans and benefits policy experts who have a different frame of reference than the agency adjudicators.
Although only disappointed claimants can appeal to the CAVC, either side may appeal a CAVC decision to the Federal Circuit. Nonetheless, in practice, the government very rarely appeals CAVC decisions, even though a substantial majority of BVA decisions are vacated and remanded at the CAVC. The Federal Circuit has limited jurisdiction to review legal issues. It cannot review factual disputes or the application of the law to the facts. The precise line is very messy, and many, if not most, appeals of CAVC decisions are dismissed, despite the best efforts of attorneys to frame appeals as presenting legal issues. Of course, Federal Circuit decisions may be appealed to the Supreme Court, but it has granted cert in only four veterans cases since the CAVC was created.
Although veterans have four bites at the apple as of right (actually five — I skipped optional review by a decision review officer at the RO level), that is not the end of the story. Finality is almost nonexistent in the system. If a claim were denied, the veteran could always try to reopen it by submitting new and material evidence. A veteran whose claim is granted may also come back to seek a higher disability rating or other additional benefits. Furthermore, veterans may also collaterally attack prior RO and BVA decisions on the basis of “clear and unmistakable error,” referred to as “CUE.” As a result, the majority of the claims in the system at any time are not original claims for benefits, but supplemental claims seeking to reopen or revise past decisions.
The sum total is a system that gives the veteran a tremendous number of bites at the apple and avoids denying a claim until it is clear that there is no other option. However, this veteran-friendly process can take a long time to complete for those who fully purse all of the reviews to which they are entitled. If that summary seems like a lot to digest, imagine how non-attorney veterans and adjudicators feel.